Ideas & Images

Tag Archives: Dowd

Multiple sources have reported that Donald Trump’s “personal attorney” called for the Justice Department to fire Robert Mueller and terminate his investigation into, among other things, collusion between the Trump presidential campaign and Russian government interests intending to support his candidacy and damage Hillary Clinton’s chances. See, e.g.,http://wapo.st/2plSJhp. The demand by John Dowd followed immediately the firing of FBI Deputy Director Andrew McCabe which, according to Dowd, was fatally influenced by political bias. Repeating claims made directly by Trump, Dowd said “I pray” that the investigation is ended.

Dowd’s “prayer” will have the same effect as the “thoughts and prayers” that are the sole national Republican response to the Parkland Florida school massacre.

Curiously, Dowd told the Daily Beast that he was speaking on behalf of the president in his capacity as Trump’s attorney. When the Daily Beast published that statement, Dowd immediately retracted it and said he was not speaking for the president.

If Dowd was truth-telling in his retraction, it means that while serving as Trump’s personal attorney, he has made public statements on his own initiative about a matter of the greatest importance to his client without his client’s knowledge or approval. If indeed Dowd were not speaking for Trump, one would expect Trump, the client whose interests are being affected, to discharge his attorney for acting without permission in a way that could damage the client. On the other hand, if Trump liked what Dowd said, he (Trump) would not fire the attorney and would align himself with the attorney’s statements. That is, in fact, what Trump did via the usual Saturday tweet storm, denying yet again that he colluded with Russians and yet again attacking federal law enforcement agencies and the State Department that he has criticized repeatedly during the campaign and after becoming president.

This dance brings to mind that other Trump attorney who claims to have acted in another matter of vital importance to Trump but without Trump’s knowledge or approval. This, of course, is Michael Cohen who has represented Trump for years and who admits he paid $130,000 to porn star Stormy Daniels to secure her agreement to remain silent about her claimed affair with Trump, an affair that Trump has denied.

So, once again, we have an attorney for Trump claiming to act on behalf of Trump without Trump’s knowledge or consent, using the attorney’s own funds and without expectation of reimbursement.

While the standards of attorney conduct have apparently loosened dramatically over recent decades, it is still considered risky for an attorney to invest in a client’s business. The potential for conflicts of interest to arise when at attorney has a financial stake in a client’s business is serious. One supposes, however, that even when it occurs, the attorney’s investment in the client’s affairs is disclosed to the client. Indeed, I believe it would be a clear ethics violation for an attorney to invest in a client’s business without disclosure to the client.

So, if I am correct, Dowd either is lying about Trump’s knowledge of the payoff to Daniels and the signing of the Nondisclosure Agreement by Dowd on Trump’s behalf or Dowd acted on Trump’s behalf without disclosing that he was, in effect, investing in Trump’s business (in this case, the business being the presidential campaign) by making the secret payment to Daniels with no expectation of repayment. Trump himself did not sign the NDA, but standing alone, that fact does not prove that he was ignorant of the arrangements. Even if it’s true that Cohen did not expect repayment (he reportedly complained to friends that Trump had stiffed him, but this is not substantiated), the payment still represents an investment that would, if successful in silencing Daniels, help get Trump elected, with longer term rewards to Dowd from his alliance with President Trump.

If there is a middle ground here, I don’t see it. We have two different attorneys acting on behalf of a client they claim was ignorant of their actions on the client’s behalf, in matters of the utmost importance to the client’s future. Perhaps someone more steeped in the nuances of attorney ethics than I can explain how such actions are not ethics violations. And, of course, if Trump did know what was being done on his behalf in either or both cases, then the lying is compounded and becomes further dishonesty and corruption on the part of the president.

Time will tell how all this shakes out. Ms. Daniels is represented by Michael Avenatti who is very measured in his public statements and, by relying on his client to speak about Trump, seems to know what he is about. Her interview with 60 Minutes is scheduled to be broadcast next Sunday and, if it happens, will shed new and dramatic light on the situation. And then there is James Comey’s book which is about to publish. Buckle your seat belts. The ride is about to get wilder.

According to a recent report in Axios, cited by CNN’s Chris Cillizza, Donald Trump’s personal attorney, John Dowd, recently said the “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.” http://cnn.it/2AUcpAw That extraordinary claim has now been repeated in even more stark terms by the President (not mine) himself: ““I have absolute right to do what I want to do with the Justice Department,” Trump asserted in a widely reported interview with the New York Times. My emphasis on “absolute right,” because this is the type of claim made by dictators and kings. Under the Constitution there are few, if any, absolute rights and the right to break the law is certainly not one of them.

By extension, Trump’s principle leads to this: since every governor is likely the chief law enforcement officer in a state, the governor cannot obstruct justice under state law by interfering with the independence of the state office of attorney general. And, since the police chief is the chief law enforcement officer in a city, he cannot obstruct justice either, no matter what he does or no matter what inspires him to act (e.g., here’s $100,000 to stop my friend (or me) from being prosecuted)? Or is it the mayor? Or both? Does Trump really believe that all these people are above the law and may interfere in investigations and prosecutions that could lead to themselves as targets? If that is the state of things, and you add up how many powerful people that involves, with command over the military, National Guard and police, you have the makings of tyranny and dictatorship.

Most likely, Trump never thought about the implications of his statement which he probably sees as applicable only to himself in his capacity as the supreme being.

Mr. Dowd, in his capacity as Trump’s lawyer, is entitled, of course, to make what are sometimes called “extension of law” arguments to support his client’s position, even if, as I believe is true here, the argument is pure poppycock. It is fundamental that a statement (read “expression of view”) made in one context may be harmless but pure poison if said to the wrong person or in a different context. Is the President merely expressing his opinion when he says to the head of the FBI “I sure wish you would let the Flynn thing slide,” and then fires the Director when he does not comply?

One might have pause over this in light of the supporting statements of Harvard Law Professor Alan Dershowitz (disclosure: I studied First Year Criminal Law under him). Dershowitz, however, as smart as he is, is not infallible. His position reminds me of some of the ultra-fine point-making for which law school classes were notoriously famous and are fine in an academic setting. In the real world we inhabit now, it proves way too much to say that the President of the United States is essentially immune from the law against obstruction of justice.

Dershowitz seems to be saying the President is “merely” exercising his Constitutional authority when he, for example, countermands a potential criminal prosecution or, for another, pardons himself or pardons targeted members of his staff even before they are charged with anything. He argues that no president has ever been charged for doing so. So what? Perhaps Special Prosecutor Mueller will be the first. There is always a first time and Trump seems primed to be it.

Obstruction seems just the kind of “high crime” that the Constitution’s impeachment provision was intended to expose to sanction by Congress and by law enforcement after impeachment succeeds.

This “I am the law” approach to governance is precisely what the Founders of the country were trying to overcome in fashioning a constitutional republic of laws, not of men. It was the essential lawlessness of the King of England, whose decrees were final and not subject to question, that the Founders intended to prevent when the office of the President of the United States was created with a provision for impeachment of the President for “high crimes and misdemeanors.” For a short, but incisive, treatment of this subject, read Impeachment, A Citizen’s Guide, by Cass Sunstein. [Note: I expect to discuss that, and some related books, in a forthcoming post.]

Mr. Dowd’s/Trump’s view that the President is both “the law” and “above the law” poses a threat to every American, including those who still think, if that word can be used here, that Trump is infallible. In this country, no one is immune from the reach of the law for crimes committed, including obstruction of justice.

No doubt an impeachment action based on obstruction of justice, collusion with enemies of the country, would end up in the Supreme Court pretty fast because Trump will never yield no matter how compelling the evidence. So, Mr. Mueller, the world turns its eyes to you. Whenever you’re ready. Bring it.